How Election Tech Could Create a Recount Nightmare

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If you used a mail-in ballot in Fulton County, Georgia this year, you may have noticed peculiar language at the top of the ballot: “Copyright © 2020 Dominion Voting Inc.” Dominion Voting is a private company that sells election technology. And this ballot design — which was created by Dominion and counted using the company’s proprietary equipment — is technically its intellectual property.

Unusual as it may seem, this isn’t uncommon: Most voting technology used throughout the U.S. is covered by intellectual property law. That means the touch-screen you might have tapped on to vote could be patented. The software used to process your vote could be copyrighted. Before you even got to the voting booth, your ballot was likely designed on copyrighted software.

And all of it could cause a nightmare after Nov. 3, according to election-security experts.

“We’re going to wind up with a thousand court cases that cannot just be resolved by just going into the software and checking to see what happened, because it’s proprietary,” said Ben Ptashnik, the co-founder of the National Election Defense Coalition, a bipartisan advocacy group that pushes Congress to reform election security.

In most elections, the intellectual-property laws that surround the machinery of America’s electoral system prove inconsequential in determining who won or lost a campaign, and software isn’t central to most contested-election scenarios, such as late-arriving ballots or issues with access to polling locations. But in instances where the vote tally itself is in question, analysts could need access to voting machines’ underlying code to determine if potential security flaws, errors or even purposeful tampering are behind the irregularities. And this year, with widespread fears of contested ballots, recounts and the potential for weeks of legal challenges that threaten to undermine public faith in the results, those IP laws could prove decisive.

“You know how Apple fights against law enforcement coming in and going into their iPhone software? Well, you’d be in the same position,” said Ptashnik. “You might have to go all the way to the Supreme Court to get permission to get into proprietary software.”

Three major companies — Election Systems & Software, Dominion Voting Systems and Hart InterCivic — together control about 90 percent of the U.S. market for voting systems, according to election security advocates and researchers consulted by POLITICO. Industry-wide, it is standard practice for those companies to tightly control who has access to their proprietary software — not only to help those companies maintain an edge over their competitors, but to prevent the fraud or hacking of elections equipment. That means that the relevant source code used to design ballots and tabulate votes is copyrighted and private.

The rough outline of those legal battles is further complicated by the contracts some states have entered into with the election-tech companies. For instance, take Michigan — the pivotal battleground state that President Donald Trump won in 2016. Under a 10-year contract signed with Hart InterCivic in 2017, the state agreed not to “attempt to access or derive any source code” used by the company. In a similar agreement with Dominion, Michigan “agree[d] not to reverse engineer or otherwise attempt to derive the source code” of the company’s software, and forfeited its right to transfer its license for Dominion’s software to third parties.

Contracts and licensing agreements are one of a few ways companies prevent outsiders from looking at their proprietary code. The Digital Millennium Copyright Act is another. Section 1201 of that federal law may block anyone besides the source code owner from accessing and viewing copyrighted source code, even if it’s for the purpose of gauging the security of those systems.

For researchers like University of Michigan computer science professor J. Alex Halderman, that presents a real obstacle.

“I’ve studied machines several times that came up on eBay after state governments decommissioned them,” said Halderman. “Once, in 2005, I got to study another voting machine because an anonymous source gave us one and our lawyers were convinced we would be allowed to study it.”

What Halderman and others are trying to prove is that these machines are secure. But some election technology companies say giving researchers access to their software is a security risk in itself.

Voatz, a technology firm that sells mobile voting systems, recently filed an amicus brief to the Supreme Court arguing that opening up its software to well-meaning third parties invites bad actors to exploit the system.

“If a security vulnerability is widely disseminated publicly and prematurely, it can expose software platforms and their users to malicious attacks, as ill-intentioned hackers can take advantage of such vulnerabilities prior to the development of any patch,” the brief said.

There are other ways to ensure security besides opening the door to hackers. One option is certifying technology equipment through the Election Assistance Commission, which also tests systems for functionality and accessibility. But Halderman says its testing program is weak.

“That level of testing is very superficial from a security standpoint,” Halderman said. “There’s now been many, many dozens of studies by academics and other independent researchers of voting machines in the U.S., virtually every one of which passed the EAC testing before it was found to have vulnerabilities by other testers.”

Federal auditors do get to inspect parts of voting-machine software, but the goal is to evaluate functionality, not quality, according to Eddie Perez, a former Hart InterCivic executive who now works with the Open Source Election Technology Institute to advocate for publicly owned voting systems.

“It’s a little bit like a mechanic looking under the hood of a car and saying, ‘The carburetor is indeed driving the piston, and that’s driving the crankshaft that makes the wheels go,’” said Perez. “But that’s not the same thing as the mechanic saying, ‘This is the best-quality car that I’ve ever seen and it’s a Mercedes, not a Yugo.’”

Getting that sort of third-party certification is critical to building public trust in an election’s outcome, said Perez. Without it, the public might have a hard time trusting election officials or election-technology companies — both of which could hypothetically produce an audit that protects their own interests.

Dominion and Hart InterCivic did not respond to repeated requests for comment for this article. ES&S told POLITICO its systems have been inspected by third parties, but it’s unclear if those audits were paid for by the company and if the findings were made public.

“ES&S has been participating in an industry effort to craft a vulnerability disclosure program that works for both security researchers and the elections technology industry,” a company spokesperson said. That program invites findings from researchers about possible vulnerability in its digital products, even though ES&S “does not give authorization to test state and local government election related networks or assets.”

Asked why it frequently places its products under intellectual protection, ES&S had a simple answer: “It’s common practice for businesses to protect their intellectual property.”

Which, to election security experts, is precisely the problem.

“What is so secret about the way these machines are counting our votes?” asked Halderman. “That’s the question that everyone should be asking when we’re told that the software is copyrighted.”

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